Decision by chief executive on planning matter taken unlawfully, says judge

The chief executive of Maldon District Council took an unlawful decision to approve changes to a planning consent, the High Court has found.

John Howell QC, sitting as a deputy High Court judge, said Fiona Marshall had been wrong to give approval in the absence of full information.

The case concerned a dispute over attempts by local resident David Brown to build a home in the village of Wickham Bishops.

Objector David Pearl argued that the approval was given unlawfully by Maldon on the ground that the site’s layout was not a matter reserved for subsequent approval in the grant of outline planning permission, and the details for which approval was sought were incompatible with the layout plan in accordance with which the development had to be carried out.

Giving judgment in Pearl, R (on the application of) v Maldon District Council & Anor [2018[ EWHC 212, Judge Howell said after various modifications the matter had reached Ms Marshall as the council lacked a head of planning services.

He said the relevant report sent to Ms Marshall “did not attach either the officer's report or the member's update. There is no evidence that the chief executive had those reports when taking her decision…the report to her did not attach the application documents or the plans and drawings that she was being recommended to approve.

“Nor did the report describe them or the representations made in relation to them or address the issue of the validity of the amended application.”

Mr Howells said that all Ms Marshall did was to “endorse the recommendation the report contained, made for the reasons which were not explained in the report to her, to grant planning permission subject to conditions in ignorance of details of the application”.

He said the valid exercise of any statutory discretion “requires the person entrusted with it to take into account herself those matters that, in the circumstances, the decision-maker must consider, and then to decide on the merits in the light of them, how the discretion entrusted to her should be exercised.

“But in this case the chief executive failed to exercise the discretion delegated to her…she was not in a position to do so. Nor was she in a position to resolve any issue about the validity of the amended application.

“At most she simply endorsed a recommendation given for reasons that were not disclosed to her. Her decision was accordingly unlawful.”

Maldon has been approached for comment.

Mark Smulian